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As I have alreaady explained (and I really hate repeating myself) - you should not confuse the "militia" statement into the right to bear arms. The original concept, the original "text" if you will, was much different then what you have above.
The constitution went through several re-writes of course, as my post above explains the "militia" comment was added in seperate from the right to bear arms. James Monroe first proposed the "right to keep and bear arms" in a rough list of basic human rights. No mention of militia was in it.
Samual Adams then proposed this, a combination of basic rights which later became at least 3 seperate ammendments:
"Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures."
Note that the right to bear arms, and the right to maintain a standing army (militia, if you will) are distinctly seperate, and it includes other basic rights.
By the time of the first voting, that became ammended to the below: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person"
Note again the seperation between militia and the right. Also note the interesting clause of the right not to serve in the military - 3 concepts here.
From this it got whittled down to the current ammendment.
If that doesn't convince you - then try to understand what The Bill of Rights, the first 10 ammendments to the US Constituion, represent. Are they individual rights or collective rights - once you understand that, the 2nd ammendment becomes clear, and there should be no further need for discussion.
The debate would have been so much simpler rresolved had the framers made them two seperate ammendments.
Last edited by WhipperSnapper 88; 08-21-2012 at 12:56 AM..
The debate would have been so much simpler rresolved had the framers made them two seperate ammendments.
It would, but it doesn't matter - the Supreme Court has picked just about every word of the ammendment apart in various rulings and wrote decisions and disertations on what they interpret the meaning to be - they have ruled that the ammendment is an individual, not collective right, and that the "militia" clause does not limit the scope of the other. They specifically ruled that the militia were indeed "the individual people" in colonial america, so regardless of the relation to one another - it doesn't really matter. There were a few dissenters on the court that didn't necessarily disagree but added a "however....", but it didn't change the final opinion of the courts.
And that's another problem with the OPs article - all this has already been debated and decided upon in the highest court and law of the land.
I don't usually venture into this forum, but saw this on the main page and it's an interesting discussion. I've had a similar conversation recently on the NJ board, but it was a little more hostile. For the record, I am NOT anti-gun, I am however a believer in sensible gun control related to the licensing and sale of firearms. So, a few of my observations on the thread so far:
What was meant in terms of the Second Amendment?
The Amendment was kept vague to placate all of those involved, but there are some things we can divine based on the debates and history of "keeping and bearing of arms". The Founders, particularly Jefferson were very entranced with the idea of the Greco-Roman model of the citizen farmer/soldier. They saw a standing army as being the greatest threat to liberty, as evidenced by the then recent history in England. To address that they believed that a militia, composed of the body of the people was the best defense for the nation until regulars could be formed to fight. There was also a bit of "fondness" for the idea of the militia amongst many of the Founders who were themselves members of the militia. Many of these men resented what they considered to be substandard treatment of the militia by the regulars, even if the militia's performance was never very good and they wanted the militia concept to be a cornerstone of the new nation.
The right to raise regulars was a power reserved to the federal government, drawing from the state militias. In order to fill this need for first line national defense, the militia needed to be "well regulated". Among the first acts of the US Congress was to pass laws regulating the militia. It determined the equipment necessary to be personally maintained, the caliber of weapons to be kept, etc. It also established that all males between 18 and 45 were duly registered in the militia, expected to attend bi-annual drills and the organization of that militia into companies, regiments, divisions, etc. was laid out and standardized among the states. So, while the Amendment addresses the "militia" as being composed of the "body of the people", there was in practice a far more organized and defined body.
The States feared Federal tyranny against their rights as much as they feared Federal tyranny against the rights of the People. The militia therefore served a dual purpose. No federal standing army was needed, because the militias composed the core of national defense. Since the militias were under the control of the State, they had a form of standing force to resist Federal authority. What they still feared though was what happened in England. After Parliament gained the right to legislate militias and private weapon ownership from the King, they then set about limiting these rights based on game laws. These laws had the effect of effectively disarming the people of England. The States feared a similar encroachment by Federal law that would create a de facto elimination of the people bearing arms and undermine the militia system thereby leaving the States and People susceptible to Federal tyranny via the Federal government having the sole right and power to raise a standing army. Hence, "the right of the people to keep and bear arms shall not be infringed".
The interesting piece is that there was a duality to "bearing arms" that the Founders recognized that we have subsequently lost. It was long recongnized in English Common Law and many colonial consitutions that people had a natural right to keep "weapons" for the personal defense of their person, family and property. This right was separate from the right to "bear arms" which was universally used in a martial/military context. The use of the term "bear arms" is important I think because it shows a difference in the concept of the common law right to keep a weapon for personal defense vs. the keeping of weapons for use in military service for common defense. Indeed early proposed versions of the Second Amendment clearly stated "the right of the people to keep and bear arms for the common defense". This language was removed because it was determined to be duplicative, because what else could "keeping and bearing arms" possibly mean?
In practice the militia system was a total disaster. Many exemptions were granted from service and people didn't show up for drills. Those who did show up often did so unarmed and without the correct legally required equipment. The first real test of the militia system happened during the Whiskey Rebellion when Washington called on several states to send their militias to put down the rebellion. Very few people responded to the call and this forced the states to implement a draft to fill the recruitment need. Many of the militia members had no arms and had to be equipped from federal armories. Then, once formed, they weren't much better then a mob and had to spend some time learning basic military drills and maneuvers. From that point on the Federal government began to make plans to correct the deficiencies, including the establishment of an officer and engineer corps as well the creation of federal armories. The militia performed horrendously in the War of 1812 and this led to the establishment of a small permanent force of regulars. By the early 1900's the system was overhauled and the modern militia system was created. This is composed of the National Guard of each state as the "organized militia" with the rest of the people (males between 17 and 45) deemed the "unorganized militia". This is the root of the modern draft registration. Some states have expanded the militia to include "Home Guard" units that are not military units, do not bear arms and cannot be federalized. These units take over the role of domestic duties like disaster relief that the National Guard performs when they aren't in Federal service.
So, I personally view it that the intent was the formation of a "well regulated" militia system. In order to accomplish that, the right of the people to "keep and bear arms" needed to be preserved. The concept of weapons for personal defense was considered a matter of common law and not core to this debate over the militia. Obviously the militia system as envisioned by the Founders has never really existed in practice.
Was the "Bill of Rights" only about personal freedoms?
Not per se. The first amendments to the Constitution involved matters that were not settled in the original document. They were the negotiations that followed to make the Federalist and Anti-Federalist blocks happy and willing to sign it. There were two other Amendments that were included in the original slate that didn't make the cut. Interestingly enough, these were originally listed first and second among those to be voted on. The "original first" better addressed the issue of the allocation of Representation in the House. The "original second" addressed the issue of Congress voting themselves pay raises. So, the original "Bill of Rights" contained two articles that were strictly speaking about the functions of the Federal government. The idea that the Second Amendment is solely about a personal freedom is not well grounded considering that the original Bill contained articles that were not limited to personal freedoms.
Does the Consitution age well and should it be adapted to modern needs?
Yes and no. The Constitution was purposefully written so as to not be "carved in stone" so that it could be adapted to the future needs of the nation. There are some Amendments that obviously have no bearing on our modern world, but were hot button issues at the time it was written. The Third Amendment expressly defends us against the government unlawfully quartering troops in our homes. When is the last time any of us were concerned about that? If we were writing the Consitution today, would that issue even be mentioned in the debates? Probably not, but it was very important to the Founders.
Then we get into the more clear cut cases over the recognition of slavery as a legal insitution and the creation of the 3/5ths Compromise. Obviously, not everything in the Consitution was necessarily good to keep and needed to be adapted to a changing world. On the specific topic of the Bill of Rights, it only applied to "free white males". While not expressly stated, it was very much understood that this was the case. Something that only began to change post Civil War.
These same rights were also limited to only the scope of the federal government. Originally the individual states were under no obligation to recognize the rights enumerated in the Constitution. Many of the individual state constitutions contained similar provisions, but there was no universal application of the "Bill of Rights" to the states. For example, many states well into the 1800's had established official "state religions", something expressly forbidden in the Constitution. It was not until the post Civil War period where the 14th Amendment forced the states to recognize all provisions of the Constituion as applying to them. Indeed, the 14th Amendment is the basis for most Supreme Court decisions regarding gun control laws. The Founders only restricted the Federal government, not the states. Previous to the 14th Amendment a state could have banned firearms, restricted speech, whatever they wanted to do and the Federal government couldn't stop them. I always find this point ironic because so many states rights people are very much against the 14th Amendment without realizing that if it didn't exist the individual states would have essentially unlimited authority over the people.
On the particular topic of the Second Amendment, Madison is quoted as marvelling at the power of the militia relative to that of a standing army. He speaks of regular forces not being able to be mustered to include much more then 30-50,000 men in a nation the size of the United States. This force would be easily opposed by a militia that would comprise millions. Of course in Madison's world a standing army had muskets as did the miltia and if the army was lucky it would have a handful of cannon as well. Madison had no concept of a military with Strikers, Bradleys, Abrams, Apaches, etc.
Are the rights enumerated in the Constitution unlimited?
No, they can be limited if such limitation is in the national interest. The best examples for this are regulations over free speech. You can't yell "Fire!" in a crowded movie theater if the purpose is to incite a panic. This example was used in the Anti-Espionage Law cases during WW1. It is usually cited as a clear cut example of limitations on free speech. However, a much better example is one that was already mentioned, child pornography.
In 1982 the Supreme Court heard a case Ferber vs. New York. Ferber owned an adult book store and sold two movies of boys masturbating to an undercover police officer. The movies violated a NY State law that banned anyone under the age of 16 from acting in a sexually explicit role. Ferber appealed his conviction on the grounds that the law violated his right to freedom of speech. He argued that the films constituted art and that they were therefore protected. He won his appeal. The state then appealed to the Supreme Court which upheld the NY State law under the premise that the production of such material was exploitative and caused harm to those featured. That case is the one that opened the door for states to ban child pornography.
So, therein lies the issue with assuming that ones enumerated rights are unlimited. If you believe that the rights are unlimited, then you must support Ferber's right to produce and sell child pornography; it is not a strawman argument and is very much a case of all or nothing. We either have unlimited rights, or we don't. Throughout the history of the US, we have never had unlimited rights, so it is foolish to argue that the Second Amendemt, even if we interpret it to apply to personal weapon ownership, thereby confers an unlimited and unregulatable right to the same.
The States feared a similar encroachment by Federal law that would create a de facto elimination of the people bearing arms and undermine the militia system thereby leaving the States and People susceptible to Federal tyranny via the Federal government having the sole right and power to raise a standing army. Hence, "the right of the people to keep and bear arms shall not be infringed".
Wrong, the Federal Government was not given the right to raise a standing army within the bounds of the constitution. It was explicitly given the right to raise and support an army for only two years
Quote:
Originally Posted by COTUS Art. 1 Sec 8
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
That is not a "standing army" a standing army is one that exists indefinitely. Websters Definition
Quote:
:a permanent army of paid soldiers
Note the difference, one is permanent, the other is limited to two years. However the COTUS does give the right to provide and maintain a navy, which makes sense, a Navy is both offensive and defensive by nature, however an army need not be maintained during times of peace if it is purely defensive in nature. This may be exactly the reason why Militia was the preferred method of defense of the nation.
Quote:
Originally Posted by NJGOAT
The interesting piece is that there was a duality to "bearing arms" that the Founders recognized that we have subsequently lost. It was long recongnized in English Common Law and many colonial consitutions that people had a natural right to keep "weapons" for the personal defense of their person, family and property. This right was separate from the right to "bear arms" which was universally used in a martial/military context. The use of the term "bear arms" is important I think because it shows a difference in the concept of the common law right to keep a weapon for personal defense vs. the keeping of weapons for use in military service for common defense. Indeed early proposed versions of the Second Amendment clearly stated "the right of the people to keep and bear arms for the common defense". This language was removed because it was determined to be duplicative, because what else could "keeping and bearing arms" possibly mean?
Agreed, under the English Common Law there was a natural right to self defense, and also a right to own weapons to provide that right, without restriction.
I'd also point out that under English common law, there were no prohibitions on owning War horses, Armour, Long Bows, Muskets, Rifles, Cannon, which to compare on the battlefield of today as Tanks, Artillery, Small arms of all caliber, Armed Personnel carriers, and Anti-Tank weapons.
Quote:
Originally Posted by NJGOAT
In practice the militia system was a total disaster. Many exemptions were granted from service and people didn't show up for drills. Those who did show up often did so unarmed and without the correct legally required equipment. The first real test of the militia system happened during the Whiskey Rebellion when Washington called on several states to send their militias to put down the rebellion. Very few people responded to the call and this forced the states to implement a draft to fill the recruitment need. Many of the militia members had no arms and had to be equipped from federal armories. Then, once formed, they weren't much better then a mob and had to spend some time learning basic military drills and maneuvers. From that point on the Federal government began to make plans to correct the deficiencies, including the establishment of an officer and engineer corps as well the creation of federal armories. The militia performed horrendously in the War of 1812 and this led to the establishment of a small permanent force of regulars. By the early 1900's the system was overhauled and the modern militia system was created. This is composed of the National Guard of each state as the "organized militia" with the rest of the people (males between 17 and 45) deemed the "unorganized militia". This is the root of the modern draft registration. Some states have expanded the militia to include "Home Guard" units that are not military units, do not bear arms and cannot be federalized. These units take over the role of domestic duties like disaster relief that the National Guard performs when they aren't in Federal service.
So, I personally view it that the intent was the formation of a "well regulated" militia system. In order to accomplish that, the right of the people to "keep and bear arms" needed to be preserved. The concept of weapons for personal defense was considered a matter of common law and not core to this debate over the militia. Obviously the militia system as envisioned by the Founders has never really existed in practice.
Ok there is an assumption here, that the Founders and/or Framers envisaged a militia system of the type that you interpret. However the facts remain that the people who forged a country from a collection of disparate colonies taken from a vastly superior Empire did not also create the militia of the type that you envisage. This raises the question of, either they somehow lucked out on creating the country, or your assumption of the type of militia you envisage is invalid.
I'd also add that the Whiskey Rebellion and the militia called would not be unexpected, given that many of the people who would be pressed into service in the militia may well be familiar with the same methods that were used by the British during the War of Independence, after all Washington was a British Officer (as is often said in the British Army, Americans can beat us in a War, but only when they're led by a British Officer), which might explain the reticence to join the Militia.
The War of 1812 was a mess, but was the first major mobilization of the Militia in "defense" of the US, however the one problem was that the first actions of the war were to invade Canada (and then surrender). Militia are pretty much useless (and always have been) in being used offensively, and this was an error in leadership not in the Militia, given that Madison had no military experience, and his cabinet was mediocre at best, its not surprising. It also most likely raised questions about the validity of the war with those not immediately affected at that time. It would also affect the militia morale from states that were isolated from any conflict.
I'll add that, they even had a degree of hindsight on how the states militia may perform, given the experience that many had attempting to herd the state cats under the articles of confederation that ultimately led to the COTUS. It may well have been intentional that the Militia appear to be disorganized given that there was a large distrust of standing armies and bankers.
Quote:
Originally Posted by NJGOAT
Was the "Bill of Rights" only about personal freedoms?
Not per se. The first amendments to the Constitution involved matters that were not settled in the original document. They were the negotiations that followed to make the Federalist and Anti-Federalist blocks happy and willing to sign it. There were two other Amendments that were included in the original slate that didn't make the cut. Interestingly enough, these were originally listed first and second among those to be voted on. The "original first" better addressed the issue of the allocation of Representation in the House. The "original second" addressed the issue of Congress voting themselves pay raises. So, the original "Bill of Rights" contained two articles that were strictly speaking about the functions of the Federal government. The idea that the Second Amendment is solely about a personal freedom is not well grounded considering that the original Bill contained articles that were not limited to personal freedoms.
That is historically accurate, but disingenuous, the first ten ratified amendments became the Bill of Rights, the fact that there were other amendments prior to those ten that were not ratified is immaterial. It's clear that the Congress, Senate, and State Governments of the time considered that personal freedoms were THE most critical elements to be included into the COTUS via those first Amendments.
Quote:
Originally Posted by NJGOAT
Does the Consitution age well and should it be adapted to modern needs?
Yes and no. The Constitution was purposefully written so as to not be "carved in stone" so that it could be adapted to the future needs of the nation. There are some Amendments that obviously have no bearing on our modern world, but were hot button issues at the time it was written. The Third Amendment expressly defends us against the government unlawfully quartering troops in our homes. When is the last time any of us were concerned about that? If we were writing the Consitution today, would that issue even be mentioned in the debates? Probably not, but it was very important to the Founders.
Using the 3rd as an argument that the consitution may not have aged well is invalid, since the 3rd is in place to prevent quartering of troops in times of peace in someone's home without permission, there has been no attempt to do so. If the third was not there, then whether there should be that amendment may well be as hot a button today as it was back then. Basically you're stating that because the third is working, if we wrote the constitution today, we'd not include the third.
As for carving in stone, no it's not nor ever has been which is why there is an amendment process.
Quote:
Originally Posted by NJGOAT
Then we get into the more clear cut cases over the recognition of slavery as a legal insitution and the creation of the 3/5ths Compromise. Obviously, not everything in the Consitution was necessarily good to keep and needed to be adapted to a changing world. On the specific topic of the Bill of Rights, it only applied to "free white males". While not expressly stated, it was very much understood that this was the case. Something that only began to change post Civil War.
These same rights were also limited to only the scope of the federal government. Originally the individual states were under no obligation to recognize the rights enumerated in the Constitution. Many of the individual state constitutions contained similar provisions, but there was no universal application of the "Bill of Rights" to the states. For example, many states well into the 1800's had established official "state religions", something expressly forbidden in the Constitution. It was not until the post Civil War period where the 14th Amendment forced the states to recognize all provisions of the Constituion as applying to them. Indeed, the 14th Amendment is the basis for most Supreme Court decisions regarding gun control laws. The Founders only restricted the Federal government, not the states. Previous to the 14th Amendment a state could have banned firearms, restricted speech, whatever they wanted to do and the Federal government couldn't stop them. I always find this point ironic because so many states rights people are very much against the 14th Amendment without realizing that if it didn't exist the individual states would have essentially unlimited authority over the people.
Which was the purpose of the Constitution, it applies to the Federal Government, since the US was created as a republic, the individual elements were at liberty to create and enforce laws that were not permissible at the Federal Level, and thus represent the will of the people within those elements. The only constraint being that those states could not create or enforce laws that effected the Federal Government in the execution of its delegated duties.
Quote:
Originally Posted by NJGOAT
On the particular topic of the Second Amendment, Madison is quoted as marvelling at the power of the militia relative to that of a standing army. He speaks of regular forces not being able to be mustered to include much more then 30-50,000 men in a nation the size of the United States. This force would be easily opposed by a militia that would comprise millions. Of course in Madison's world a standing army had muskets as did the miltia and if the army was lucky it would have a handful of cannon as well. Madison had no concept of a military with Strikers, Bradleys, Abrams, Apaches, etc.
Are the rights enumerated in the Constitution unlimited?
No, they can be limited if such limitation is in the national interest. The best examples for this are regulations over free speech. You can't yell "Fire!" in a crowded movie theater if the purpose is to incite a panic. This example was used in the Anti-Espionage Law cases during WW1. It is usually cited as a clear cut example of limitations on free speech. However, a much better example is one that was already mentioned, child pornography.
No yelling fire on a crowded theater (even to incite panic) is not a regulation of free speech, it's a stupid argument used by people who do not understand the law the law isn't prohibiting you from yelling fire, just on your intent for why you are yelling fire.
To use a similar analogy if we agree that yelling "Fire!" in a crowded theater to incite panic being illegal is a restriction on the right to free speech, we must also agree that killing someone with a weapon being illegal is equally a restriction on the right to bear arms. Patently this is absurd.
However the Anti-Espionage Act of 1917 does tread into potentially limiting the 1st amendment, although in Schenk vs. the US, this was not found to be the case, it does not mean that from this is no prima facie limitation (I personally think it does limit the first, but the SCOTUS doesn't). Schenk BTW is the case where yelling fire in a crowded theater comes from (as an interesting aside).
Quote:
Originally Posted by NJGOAT
In 1982 the Supreme Court heard a case Ferber vs. New York. Ferber owned an adult book store and sold two movies of boys masturbating to an undercover police officer. The movies violated a NY State law that banned anyone under the age of 16 from acting in a sexually explicit role. Ferber appealed his conviction on the grounds that the law violated his right to freedom of speech. He argued that the films constituted art and that they were therefore protected. He won his appeal. The state then appealed to the Supreme Court which upheld the NY State law under the premise that the production of such material was exploitative and caused harm to those featured. That case is the one that opened the door for states to ban child pornography.
So, therein lies the issue with assuming that ones enumerated rights are unlimited. If you believe that the rights are unlimited, then you must support Ferber's right to produce and sell child pornography; it is not a strawman argument and is very much a case of all or nothing. We either have unlimited rights, or we don't. Throughout the history of the US, we have never had unlimited rights, so it is foolish to argue that the Second Amendemt, even if we interpret it to apply to personal weapon ownership, thereby confers an unlimited and unregulatable right to the same.
The case was New York vs. Ferber (New York were prosecuting Ferber, Ferber was not suing New York) it's also debatable whether it is a valid limitation of the first amendment or not.
However, consider the comparison of exercising your first amendment rights, to exercising your second amendment rights. Before you exercise your first amendment rights do you have to prove you are not a felon? If you are and you exercise those rights are you imprisoned for up to 10 years? Do you have to prove you're not mentally incompetent (which may be a problem for some of those guys on Capitol Hill)? Are you restricted from using particular words or phrases? Do you have to fill in a form that you swear is the truth before you can speak in public? Are you required by many states to obtain a permit to stay silent while in public (concealed carry)?
The regulations on free speech are minimal (Child Pornography is pretty much the limit on blanket prohibitions of the 1st Amendment if you even consider it such). Not so the second, where you must be approved to purchase a firearm (not a felon, or involuntarily committed), must obtain a permit to carry a firearm on your person in most states, have restricted access to weapons freely available to the military, and in other countries for instance automatic firearms (limited quantities available, plus registration and fees), large caliber (over .50 Caliber) rifles, or require individual registration and fees for other devices (grenades [each one requires approval and a tax] short barrelled shotguns/rifles for example), or have areas where it is entirely illegal to be in possession of a firearm (gun free zones), etc.
If similar restrictions were levied on the 1st Amendment, then yes, there is an equivalence, however there is not, yet we all agree that the pen is mightier than the sword, and the people who are responsible for the most deaths are not the ones wielding the gun, or the axe or the sword, but the people who are telling those who are wielding the gun or the axe or the sword who to kill, or oppress, or abuse. I won't provide examples because they are just too many. In all of the wars in all of time those most responsible were the speakers, yet the 1st is mostly unscathed. Even outside of wars the media and free speech still can cause harm, yet it's considered acceptable, an I agree it is, but I'm not a big believer in government regulation of anything. Damage and harm exist in all liberty, it's one of the facts, that Liberty is not certified 100% safe, but it's preferable to the alternatives.
quote: The constitution went through several re-writes of course, as my post above explains the "militia" comment was added in seperate from the right to bear arms. James Monroe first proposed the "right to keep and bear arms" in a rough list of basic human rights. No mention of militia was in it.
Re-writes are re-writes- it means they changed their minds! The Bill of Rights as it stands is very clear and specific on the militia issue. I do not debate that the issue was "settled" by the court- I feel the court was wrong then in their interpretation and are wrong now.
Re-writes are re-writes- it means they changed their minds!
Again you've missed the mark. No minds were changed, but rather, his point is that instead of making two seperate ammendments, one for militia, and one for the individual right of the people to bear arms, they just combined them.... perhaps to keep the bill of rights at a nice even ten instead of an awkward eleven
Quote:
The Bill of Rights as it stands is very clear and specific on the militia issue.
As he also explained, you are making the mistake of applying a modern interpretation of what a militia is. Back then, the individual WAS the militia. Now, you could argue that if the fathers were alive today, they may have a different opinion, as you did earlier, but so what? That is not up for debate and we do not have the ability orfor that matter, the authority to speak for the dead.
Can't rememnber if it was this thread or some other, but somone posted alink to several quotes by the founding fathers. Once you've read that, where they may or may not stabnd on the individual right of the citizen to bear arms becomes quite clear. Here it is again.
Wrong, the Federal Government was not given the right to raise a standing army within the bounds of the constitution. It was explicitly given the right to raise and support an army for only two years
That is not a "standing army" a standing army is one that exists indefinitely. Websters Definition
Note the difference, one is permanent, the other is limited to two years. However the COTUS does give the right to provide and maintain a navy, which makes sense, a Navy is both offensive and defensive by nature, however an army need not be maintained during times of peace if it is purely defensive in nature. This may be exactly the reason why Militia was the preferred method of defense of the nation.
The reason for the two year limitation goes back to the experience of the English libertarians in the English Revolution and the Glorious Revolution of 1688. Parlialment recognized that the King's power via his army needed to have checks placed upon it. The first of these checks was financial. Parliament had to gather each year and re-approve the Mutiny Act in order to provide funds for the army. This is the root of the two year money appropriation in the Constitution. The government could still create a "standing army" and the Founders debates specifically quote this force as a "standing army" and highlight that this is a power/right denied to the States, but they gave Congress a way to limit the power of that army by limiting it to only two-year appropriations. Congress could simply vote an appropriation each year or every two years to keep the army formed. Indeed, although we have a "standing army" today the law still works the same way and is the reason that Congress must vote on a "National Defense Authorization Act" each year to appropriate funds for the military. This is also why Bush had to request separate appropriations when spending exceeded the allotted Act in order to pay for operations in Iraq and Afghanistan. Only Congress can authorize funding for the military.
Quote:
Agreed, under the English Common Law there was a natural right to self defense, and also a right to own weapons to provide that right, without restriction.
I'd also point out that under English common law, there were no prohibitions on owning War horses, Armour, Long Bows, Muskets, Rifles, Cannon, which to compare on the battlefield of today as Tanks, Artillery, Small arms of all caliber, Armed Personnel carriers, and Anti-Tank weapons.
It was not without restriction. Parliament simply gained the power from the King to regulate the bearing of arms. This was done as a direct result of James II attempting to disarm Protestants while at the same time arming "papists" who supported him. The exact English Law in existence at the time stated, "subjects may have arms for their defense suitable to their conditions and allowed by law". Previous to these Acts coming out of the Glorious Revolution citizens had many different forms of arms and there was a long standing tradition of requiring subjects to have arms to serve in the military as needed, for instance the long bow laws dating back to the 1181 Assize of Arms.
What happened in the 1700's though was that Parliament passed a series of laws to confiscate arms as a direct response to what was happening in Scotland. They then expanded these laws to cover various game provisions that had the result of effectively disarming the British people except in limited circumstances and among those wealthy enough to afford firearms. Many of the Founders debates over the "right of the people to keep and bear arms" was tied to their fear of the Federal government using game laws to effectively disarm people, or to suppress insurrection.
So, while Common Law recognized the right of people to be armed for their personal defense, it was not an unlimited right and subject to Parliaments laws.
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Ok there is an assumption here, that the Founders and/or Framers envisaged a militia system of the type that you interpret. However the facts remain that the people who forged a country from a collection of disparate colonies taken from a vastly superior Empire did not also create the militia of the type that you envisage. This raises the question of, either they somehow lucked out on creating the country, or your assumption of the type of militia you envisage is invalid.
It's not an assumption, they definitely attempted to create such a system. The Militia Act of 1792 was that attempt and was born out of the "St. Clair's Defeat" where a hodge-podge US force was decimated by Indians in the Northwest Territory. The result was the Militia Act and the establishment of the Legion of the United States as a replacement and reorganization of the US Army. The fact that the system never worked as envisaged is a result of people not properly arming themsleves as required by law, extensive numbers of exceptions to service granted, etc. The failure of this system is what resulted in the realization that a proper defense of the nation could only be achieved with regular troops.
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I'd also add that the Whiskey Rebellion and the militia called would not be unexpected, given that many of the people who would be pressed into service in the militia may well be familiar with the same methods that were used by the British during the War of Independence, after all Washington was a British Officer (as is often said in the British Army, Americans can beat us in a War, but only when they're led by a British Officer), which might explain the reticence to join the Militia.
It wasn't a reluctance to join the militia. By law every male between 18 and 45 was required to be a member of the militia and to provide themselves with proper arms. People simply didn't want to have to bother themselves with regular militia drills and certainly no one wanted to be called up to spend 6 months or more away from home. Certainly in the Whiskey Rebellion there were some who objected because they didn't want to take up arms against their fellow citizens, but the main driver was the simple fact that no one wanted to be bothered and those that were eventually forced by draft into the militia showed up largely unarmed.
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The War of 1812 was a mess, but was the first major mobilization of the Militia in "defense" of the US, however the one problem was that the first actions of the war were to invade Canada (and then surrender). Militia are pretty much useless (and always have been) in being used offensively, and this was an error in leadership not in the Militia, given that Madison had no military experience, and his cabinet was mediocre at best, its not surprising. It also most likely raised questions about the validity of the war with those not immediately affected at that time. It would also affect the militia morale from states that were isolated from any conflict.
The Invasion of Canada was certainly ill-conceived, but it was hardly something the militia's involved were against. It was not until the third attempt at Lake Champlain did the militia refuse to cross into Canada and that was only because the previous two attempts had been defeated. However, I would not hang my hat on militia performance based on the Invasion of Canada. The Battle of Bladensburg which occurred nearly two years into the war and involved local militia defending their home states and the national capitol against the British. The militia broke nearly instantly when they came under fire and their route left the few regulars present to their fates. The breaking of the militia allowed the British to march on and then burn Washington.
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I'll add that, they even had a degree of hindsight on how the states militia may perform, given the experience that many had attempting to herd the state cats under the articles of confederation that ultimately led to the COTUS. It may well have been intentional that the Militia appear to be disorganized given that there was a large distrust of standing armies and bankers.
Except, as I have pointed out, the militia were not supposed to be disorganized, hence the "well regulated" part of the Amendment and the various Militia Acts to effect an organization to make them a cohesive and semi-dependable force. The Founders may have had a soft-spot for the militia, but they all did recognize the fact that the militia almost never performed well in battle whether on the defense or offense, in their home state or in another.
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That is historically accurate, but disingenuous, the first ten ratified amendments became the Bill of Rights, the fact that there were other amendments prior to those ten that were not ratified is immaterial. It's clear that the Congress, Senate, and State Governments of the time considered that personal freedoms were THE most critical elements to be included into the COTUS via those first Amendments.
You are correct that the ten that were ratified were the ones deemed most important. The Congress and Senate sent all 12, it was only the select ten that were ratified by the states. However, I do think it serves as evidence, that the Amendments in total were not simply about the guarantees of personal freedoms. There is a duality to the Second Amendment, one asserting the place of the militia and the other asserting the necessity of people to bear arms to fulfill the first. Some people argue that it is only about a personal freedom and I don't see it that way.
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Using the 3rd as an argument that the consitution may not have aged well is invalid, since the 3rd is in place to prevent quartering of troops in times of peace in someone's home without permission, there has been no attempt to do so. If the third was not there, then whether there should be that amendment may well be as hot a button today as it was back then. Basically you're stating that because the third is working, if we wrote the constitution today, we'd not include the third.
As for carving in stone, no it's not nor ever has been which is why there is an amendment process.
Your argumnet on the 3rd is logical, I will let my argument stand on the other points, that the Constitution as originally conceived needed to be adapted to changing conditions. At least we are both in agreement that the Consitution is not carved in stone and able to be changed. Some were arguing an "absolutist/literal" view of the Constitution as if it was 'carved in stone'.
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Which was the purpose of the Constitution, it applies to the Federal Government, since the US was created as a republic, the individual elements were at liberty to create and enforce laws that were not permissible at the Federal Level, and thus represent the will of the people within those elements. The only constraint being that those states could not create or enforce laws that effected the Federal Government in the execution of its delegated duties.
We are in agreement, no argument from me. Again, I was just addressing the 'carved in stone' argument. Which, if we were to hold ourselves to the original intent, things like the 2nd Amendment would not apply to the States. It was only through adaptation in the 14th that the "Bill of Rights" was required to be respected by the individual States.
I have no issue with your argument, merely stating the obvious that when the Founders envisaged a militia fighting a regular army, the scale of weaponry was not known. Consider it then also a backend attempt to re-assert that the Founders had no concept of the types of weapons we have available today for personal armament.
Building on your rather excellent points in that post though, you essentially have undermined the argument of the necessity of the people to be armed to serve as a check on Federal military power as presented by the Founders. Do to the various laws, structure and geo-political situation well beyond the scope of anything the Founders could have envisaged, the mere concept of the US military being turned against the civilian population is so remote as to be non-existant. If the intent was to guarantee people arms so that they could serve in the militia to check Federal tyranny and that threat no longer exists, for what purpose are we still bearing arms?
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No yelling fire on a crowded theater (even to incite panic) is not a regulation of free speech, it's a stupid argument used by people who do not understand the law the law isn't prohibiting you from yelling fire, just on your intent for why you are yelling fire.
If it is not a restriction on my rights to free speech, then why can I not yell "fire" for whatever reason I please? An unlimited right to free speech would imply I have an unlimited right to say whatever I want and we know that isn't the case.
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To use a similar analogy if we agree that yelling "Fire!" in a crowded theater to incite panic being illegal is a restriction on the right to free speech, we must also agree that killing someone with a weapon being illegal is equally a restriction on the right to bear arms. Patently this is absurd.
Your analogy is not correct. It is illegal to kill someone whether I use a gun, a knife, a car or my bare hands. Since I cannot yell "fire" in order to amuse myself, my right of free speech is restricted and not unlimited. The correct analogy to weapons vis-a-vis the 2nd Amendment would be a restriction on the types of weapons I am allowed to possess.
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However the Anti-Espionage Act of 1917 does tread into potentially limiting the 1st amendment, although in Schenk vs. the US, this was not found to be the case, it does not mean that from this is no prima facie limitation (I personally think it does limit the first, but the SCOTUS doesn't). Schenk BTW is the case where yelling fire in a crowded theater comes from (as an interesting aside).
My reading of Schenck was that limiting the right of free speech was acceptable as long as it passed what they coined the "clear and present danger" test. This test if where the "fire shouting" quote comes from. Schenck was found guilty of attempting to subvert the government by encouraging people to resist the draft, hence he did not have a "right" to say what he was saying about the draft. Subsequent cases, most notably Brandenburg vs. Ohio have given more power back to speeh by changing the standard to the "imminent lawless action" test. Basically you can say whatever you want unless, your actions are to directly incite people to commit an act of lawlessness. In the text of the case which involved the KKK it ends up like this: I can say "we're going to kill those n-words" and as long as that doesn't immediately result in the killing of someone or an act of violence, I am within my rights to do so.
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The case was New York vs. Ferber (New York were prosecuting Ferber, Ferber was not suing New York) it's also debatable whether it is a valid limitation of the first amendment or not.
The Ninth Circuit certainly felt it was a violation of Ferbers 1st Amendment rights, the SCOTUS disagreed. This case is one of the ones most cited in legal books and case law as a clear limitation on 1st Amdendment rights.
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However, consider the comparison of exercising your first amendment rights, to exercising your second amendment rights. Before you exercise your first amendment rights do you have to prove you are not a felon? If you are and you exercise those rights are you imprisoned for up to 10 years? Do you have to prove you're not mentally incompetent (which may be a problem for some of those guys on Capitol Hill)? Are you restricted from using particular words or phrases? Do you have to fill in a form that you swear is the truth before you can speak in public? Are you required by many states to obtain a permit to stay silent while in public (concealed carry)?
The regulations on free speech are minimal (Child Pornography is pretty much the limit on blanket prohibitions of the 1st Amendment if you even consider it such). Not so the second, where you must be approved to purchase a firearm (not a felon, or involuntarily committed), must obtain a permit to carry a firearm on your person in most states, have restricted access to weapons freely available to the military, and in other countries for instance automatic firearms (limited quantities available, plus registration and fees), large caliber (over .50 Caliber) rifles, or require individual registration and fees for other devices (grenades [each one requires approval and a tax] short barrelled shotguns/rifles for example), or have areas where it is entirely illegal to be in possession of a firearm (gun free zones), etc.
If similar restrictions were levied on the 1st Amendment, then yes, there is an equivalence, however there is not, yet we all agree that the pen is mightier than the sword, and the people who are responsible for the most deaths are not the ones wielding the gun, or the axe or the sword, but the people who are telling those who are wielding the gun or the axe or the sword who to kill, or oppress, or abuse. I won't provide examples because they are just too many. In all of the wars in all of time those most responsible were the speakers, yet the 1st is mostly unscathed. Even outside of wars the media and free speech still can cause harm, yet it's considered acceptable, an I agree it is, but I'm not a big believer in government regulation of anything. Damage and harm exist in all liberty, it's one of the facts, that Liberty is not certified 100% safe, but it's preferable to the alternatives.
I was not debating that there were or weren't restrictions on the Second Amendment, which has more then on any other individual right, merely responding to the belief of some people that all enumerated rights are unlimited.
At the end of the day we are left to decide whether the 2nd Amendment is providing a right to bear arms that is above and beyond its need for service in a militia. My personal reading and understanding leads me to believe that both sections of the 2nd Amendment are intertwined and the bearing of arms is related to service in the well regulated militia. HOWEVER, I also acknowledge the concept of a common law right for people to keep arms for the personal defense of their person and property. While I think we have tangled these concepts together over the years, we are left with what we have today based on our interpretations which is that people have an enumerated right to bear arms and I personally support that right.
At the same time I believe there is a logic and reasoning to the regulation of arms and that right is not unlimited. Such regulation should NOT be in the form of the banning of common arms and this is what the SCOTUS has repeatedly struck down. However, even while the existing laws are burdensome to legal gun owners, the hodge-podge of state laws makes many of the laws ineffectual. States with the strictest gun laws like NJ (which I fully agree are over-burdensome) are still flooded with illegal firearms purchased out of state with straw purchases or at gun shows. I think there is room for more logical regulation that can limit the ability of criminals to get their hands on guns while preserving and perhaps even enhancing the ability of law abiding citizens to own and possess firearms.
The founders argued among them selfs, where Jefferson seemed to like the idea of war and revolution every so often just to keep things stirred up, others like Addams liked a more stable government, and Washington used force of arms to put down the whiskey rebellion. Thomas Pain was an atheist or agnostic at min, writing that if "Thomas [the disciple] had to put his finger into the risen Jesus to believe he was raised form the dead, than how much more so should I who has seen nothing of miracles question the very existence of god?"
You are definitely correct and deism is not the rejection of the existence of God, merely the rejection of organized religion and the supernatural. The general concept would be that through reason and natural observation one is led to the conclusion that the universe was made by a Creator. That "Supreme Architect" does not interfere in the lives of men or the functioning of the universe.
Overall, of the 55 delegates to the Constitutional Convention in 1787; officially there were 28 Episcopalean, eight Presbyterian, seven Congregationalist, two Lutheran, two Dutch Reformed, two Methodist and two were Catholic. The remaining three were non-affiliated. Many of the Founders kept a religious affiliation even if they were not practicing or heavily influenced by deist beliefs. Overall, you end up with sort of a hodge-podge of religious backgrounds and beliefs influenced by deism and Christianity. For instance, some put Jefferson and Franklin in the "deist" camp while others say they were "anti-clerical Christians". Some others have argued that the majority of the leading Founders; Adams, Jefferson, Franklin, Wilson, Morris, Madison, Hamilton and Washington were a hybrid called "theist rationalism". NONE of the Founding Fathers were atheist.
I have a question for you. Why is it you can't read the second amendment and let it go at that? Why must you try and cause an argument among us, when it comes to firearms? I don't want what happened in Germany in the 1940's to happen here, it could happen here if everyone was dumb enough to trust the government. Citizens having firearms helps keep the government from intruding into our lives even more than they do now. Firearm crime is small compared to the number of people who own guns.
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The Founders’ Muddled Legacy on the Right to bear arms
